Background to the complaint

1. The complainant participated in a staff selection procedure organised by the European External Action Service (EEAS) for the position of Director Civilian Planning and Conduct Capability/Civilian Operations Commander.^[1]

2. In September 2020, the EEAS informed the complainant that he had not been selected for the position. In December 2020, the complainant submitted an administrative complaint under the EU Staff Regulations^[2] to the EEAS against its decision not to select him.

3. The European Commission dealt with the complaint and prepared a draft reply.^[3] In March 2021, the final decision was transmitted to the complainant by the EEAS, rejecting his complaint under the EU Staff Regulations.

4. On 18 May 2021, the complainant requested public access^[4] from the Commission to the “assessment” of his administrative complaint.

5. On 28 June 2021, the Commission replied. It identified five documents as falling within the scope of the request, namely notes and internal exchanges between the EEAS and the Commission on the preparation of the final decision. Documents already in the possession of the complainant (for example e-mails exchanged between the EEAS and him) were excluded from the scope of the request. The Commission granted partial access to one document and to the annex of another document. It refused access to the remaining documents, in order to protect the privacy and the integrity of the individual,^[5] court proceedings and legal advice,^[6] as well as the decision-making process.^[7]

6. On 5 July 2021, the complainant asked the Commission to review its decision (by making what is known as a ‘confirmatory application’).

7. On 5 October 2021, after the extended time limit of 30 working days provided for under Regulation 1049/2001 had expired, the Commission sent its confirmatory decision refusing further access.

8. Dissatisfied, the complainant turned to the Ombudsman.

9. On 28 June 2021, the complainant brought an action before the General Court of the EU seeking the annulment of the decision of the EEAS for the selection of the Director Civilian Planning and Conduct Capability/Civilian Operations Commander.^[8] The case is currently ongoing.^[9]

The inquiry

10. The Ombudsman opened an inquiry into whether the Commission had wrongly refused public access to the requested documents and into the delay incurred by the Commission in the processing of the complainant’s confirmatory application.

11. In the course of the inquiry, the Ombudsman inquiry team inspected the documents at issue. The Ombudsman also obtained further clarifications from the Commission concerning the delay.

Arguments presented

By the Commission

12. The Commission said that the documents contain personal data^[10] of its staff members and of the candidates to the selection procedure. It considered that the arguments put forward by the complainant did not meet the conditions for the transmission of the personal data.^[11] It also pointed out that, under the EU legislation on access to documents, disclosing the data in question would make it accessible to the public, and not only to the complainant.

13. The Commission argued that both aspects of the exception relating to the protection of court proceedings and legal advice apply in this case. Firstly, the documents contain a detailed legal analysis and legal opinions on elements raised in the complaint under the EU Staff Regulations.^[12] Arguments from those internal legal opinions were “closely connected to the legal issues” raised in the pending court case brought by the complainant against the EEAS. Secondly, disclosure would compromise the position of the EEAS and the principle of equality of arms in the pending court proceedings.^[13]

14. The Commission further argued that the documents include deliberations of the selection board, which are confidential,^[14] and preliminary assessments on the handling of the selection procedure and administrative complaint. The Commission needed to ensure the effectiveness of its decision-making process in the handling of complaints under the EU Staff Regulations and allow its services to express views independently and free from external pressure.^[15] In addition, in this particular case, the decision-making process would be seriously undermined by disclosure, if the selection procedure, currently contested before the court, was annulled and, as a consequence, reopened. The Commission also told the complainant that the Code of Good Administrative Behaviour^[16] does not apply to selection procedures, as the applicant cannot claim to be merely a member of the public.^[17]

15. Finally, the Commission considered that there is no public interest in disclosure that would override the public and private interests protected by the exceptions mentioned above. The complainant’s reference to the general need to be transparent did not prevail over the reasons justifying non-disclosure. Moreover, “having access to the documents would be useful for individuals that launch judicial proceedings against the institutions”, was a private interest.

16. Concerning the delay in processing the confirmatory application, the Commission’s initial deadline to reply was 29 July 2021. It, however, extended the deadline until 19 August 2021, saying that it had “not yet been able to gather all the elements needed to carry out a full analysis [...] and to take a final decision.” On the last day of the extended deadline, the Commission informed the complainant that it was still not able to respond, as it had “not yet finalised internal consultations”, and that it was doing its utmost to provide a reply “as soon as possible”. The Commission apologised for this situation. It adopted its reply on 4 October 2021.

17. The Commission told the Ombudsman that the delay was due firstly to “the applicability of multiple exceptions to the requested documents in conjunction with the amount of documents that had to be assessed”. There were 222 pages in total and it had to carefully analyse which parts were covered by which exceptions. Secondly, due to “the specific nature of this case, i.e. the request for access to documents related not to the selection competition itself, but to the handling of the complaint about this selection” a broad range of case-law had to be examined. Thirdly, the reasons put forward by the complainant needed to be considered and addressed in the confirmatory decision. Lastly, various departments of the Commission needed to be consulted,^[18] as well as the EEAS.

By the complainant

18. The complainant argues that the delay incurred in the processing of his confirmatory application was inappropriate, as the Commission failed to provide adequate reasons for it, apart from “internal consultations”. He considered this a breach of the EU legislation on public access to documents and of good administrative practices. In the complainant’s view, it is not evident why the Commission needed to consult the EEAS at the initial and confirmatory stage, unless this was due to contradictory positions - the Commission supporting disclosure, with the EEAS opposing it.

19. The complainant clarified that he did not request access to the selection files or the deliberations of the selection board. He was interested only in the documents containing the Commission’s assessment of his complaint under the EU Staff Regulations and knowing whether the EEAS departed from that assessment.

The Ombudsman's assessment

20. The inspection of the documents in question confirmed that these are either part of the selection procedure or include a legal assessment of the administrative complaint under Article 90(2) of the EU Staff Regulations. The documents also include personal data throughout.

21. As regards personal data, the complainant needed to put forward a necessity in the public interest that would justify disclosure. The complainant has not done so. His interest in accessing the documents, and the personal data, seems to be purely personal in nature and cannot thus be taken into account.

22. The Ombudsman notes that the Commission invoked both the protection of legal advice and of court proceedings to refuse disclosure. The Ombudsman confirms that the documents in question contain legal opinions concerning the selection procedure and the administrative complaint. Since the selection procedure in question is now being contested before the Union judiciary, the content of those documents is directly linked with the ongoing court proceedings. As recognised by the case-law, if one party benefitted from access to internal information belonging to the other party, the equality of arms would be compromised as well as the integrity of the proceedings.^[19]

23. The Ombudsman therefore finds the Commission’s reasoning that disclosure could undermine ongoing court proceedings to be justified and in line with EU case-law.

24. The Commission furthermore argued that one of the requested documents is also covered by the principle of secrecy in selection procedures. The principle of secrecy in selection procedures was introduced to protect the decision-making by guaranteeing the independence of selection boards and the objectivity of their proceedings, by protecting them from all external interference and pressures whether these come from the EU administration itself or the candidates concerned or third parties.^[20] As the Ombudsman can confirm that the document in question includes the individual assessment of the candidates’ qualifications by the selection panel, the Ombudsman finds the Commission’s reliance on this argument reasonable.

25. In light of the above, the Ombudsman considers that the Commission was justified in refusing access to the relevant parts of the documents to which the complainant is seeking access.

26. As for the delay, the Ombudsman notes that in accordance with the EU legislation on access to documents a confirmatory application should be handled within 15 working days. However, “in exceptional cases, for example in the event of an application relating to a very long document or to a very large number of documents, the time limit (...) may be extended by 15 working days, provided that the applicant is notified in advance and that detailed reasons are given”.^[21] In this case, the Commission adopted its reply 32 working days after the statutory deadlines expired. It did inform the complainant about the delay and provided him with short explanations.

27. During the inquiry, the Commission provided further details to explain the delay in handling the complainant’s request (as described in paragraph 17). In particular, it mentioned the volume of the documents, the complexity of the case which required a broad range of case-law to be taken into account, and the need to consult within the Commission and with the EEAS. 

28. The right to access EU documents is a fundamental right and any delay in dealing with a request for access to documents should be avoided. Given the importance of this issue, the Ombudsman has been monitoring the delays incurred by the Commission when dealing with access requests for some time now and intends to look into this issue from a systemic perspective in the first half of 2022. While the delay in this case is regrettable, a finding of maladministration is not warranted, given the reasons set out by the Commission. The Ombudsman has not identified any further reasons for the delay, beyond those expressly set out by the Commission.

29. In light of the above, the Ombudsman closed the case.

Conclusion

Based on the inquiry, the Ombudsman closes this case with the following conclusion:^[22]

While the delay incurred by the European Commission in dealing with this public access request was regrettable, the Ombudsman does not believe a finding of maladministration is warranted. Similarly, there was no maladministration by the Commission in terms of its reply in substance on the request.

The complainant and the European Commission will be informed of this decision.

 

Rosita Hickey
Director of Inquiries

Strasbourg, 09/03/2022

 

[1] EEAS Vacancy notice 2020-47 HQ (AD) Director, Director Civilian Planning and Conduct Capability/ Civilian Operations Commander.

[2] Under Article 90(2) of the Staff Regulations of Officials and the Conditions of Employment of Other Servants of the European Economic Community and the European Atomic Energy Community: http://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A01962R0031-20140501.

[3] In accordance with a Service Level Agreement between the European Commission and the EEAS.

[4] Under Regulation 1049/2001 regarding public access to European Parliament, Council and Commission documents: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex:32001R1049.

[5] Article 4(1)(b) of Regulation 1049/2001.

[6] Article 4(2) second indent of Regulation 1049/2001.

[7] Article 4(3) second subparagraph of Regulation 1049/2001 read in conjunction with Article 6 of Annex III of the EU Staff Regulations.

[8] In line with Article 91 of the EU Staff Regulations.

[9] Action brought on 28 June 2021, Case T-365/21, TJ v EEAS: https://curia.europa.eu/juris/document/document.jsf?text=&docid=245968&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=397776

[10] In the meaning of Article 3(1) of Regulation 2018/1725 https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32018R1725.

[11] In accordance with Article 9(1)(b) of Regulation 2018/1725.

[12] The Commission referred to the concept of ‘legal advice’ as interpreted by the case-law, in particular to the Judgment of the General Court of 15 September 2016, Herbert Smith Freehills v Commission, T-755/14, paragraph 47 and 48: https://curia.europa.eu/juris/document/document.jsf?text=&docid=183331&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3640013;
Judgment of the Court of 1 July 2008, Kingdom of Sweden and Maurizio Turco v Council of the European Union, Joined Cases C-39/05 P and C-52/05 P, paragraphs 38-39: https://curia.europa.eu/juris/document/document.jsf?text=&docid=67058&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3640820.

[13] The Commission referred to the Judgment of the General Court of 15 September 2016 in Case T-18/15, Philip Morris v Commission, paragraph 64: https://curia.europa.eu/juris/document/document.jsf?text=&docid=183326&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3638139;
Judgment of the General Court of 6 February 2020, Compañía de Tranvías de la Coruña, SA v European Commission, T-485/18, paragraph 39: https://curia.europa.eu/juris/document/document.jsf?text=&docid=223086&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3638611;
Judgment of the General Court of 7 February 2018, Access Info Europe v European Commission, T-851/16, paragraph 72: https://curia.europa.eu/juris/document/document.jsf?text=&docid=199184&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3638779.

[14] In accordance with Article 6 of Annex III of the Staff Regulations.

[15] The Commission referred to the Judgment of the General Court of 15 September 2016 in Case T-18/15, Philip Morris v Commission, paragraph 87: https://curia.europa.eu/juris/document/document.jsf?text=&docid=183326&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3638139

[16] https://ec.europa.eu/info/about-european-commission/service-standards-and-principles/ethics-and-good-administration/good-administration/code-good-administrative-behaviour-and-complaints_en

[17] Judgment of the European Union Civil Service Tribunal of 18 September 2012, Eva Cuallado Martorell v European Commission, F‑96/09, paragraphs 90-91: https://curia.europa.eu/juris/document/document.jsf?text=&docid=127081&pageIndex=0&doclang=EN&mode=lst&dir=&occ=first&part=1&cid=3647330.

[18] The confirmatory decision is prepared by the Commission’s Secretariat-General, which in this case needed to consult the Directorate-General for Human Resources and Security and the Legal Service.

[19] Judgment of the General Court of 15 September 2016 in case T-18/15, Philip Morris v Commission, paragraph 65.

[20] Judgment of the General Court of 14 July 2005, Le Voci v Council, Case T-371/03, paragraph 123: https://eur-lex.europa.eu/legal-content/EN/TXT/HTML/?uri=CELEX:62003TJ0371&from=EN.

[21] Article 8(2) of Regulation 1049/2001.

[22] This complaint has been dealt with under delegated case handling, in accordance with the Decision of the European Ombudsman adopting Implementing Provisions